“Independent Legal Advice”
April, 2007
Fun and Games with the Charter
The Canadian Charter of Rights and Freedoms is not generally known as being a document
which is the source of humour. Recently, however, I heard of a case where the Charter was used
to generate a result which struck me as somewhat funny. Not funny in a ‘ha ha’, belly laugh type
of way. Rather, funny in a cynical, and ironic way.
The case involved charges of impaired driving which were laid against Dale Hunter, who
currently is the coach of the London Knights, that city’s Junior A Hockey team. Hockey fans
will recall Hunter as being a hard-nosed player who took more than his fair share of penalties,
and who had a long and illustrious playing career in the National Hockey League. As the coach
who has led the Knights to the position of being a perennial powerhouse in the Junior A ranks,
Hunter enjoys a position of prominence in the City of London.
Which leads us to July of 2006, when a police officer in London observed Hunter behaving in a
manner consistent with someone who had had too many drinks. He was seen to be driving and
then parking his vehicle erratically, his speech was delayed, his eyes were bloodshot, and he was
fumbling through his wallet as he attempted to pull out papers requested by the officer.
This unfortunately reflects a scene which is re-enacted, with some variation, far too many times
across this country, probably every day. What happened next, however, starts to move away
from the ordinary.
The arresting officer recognized Hunter as a hockey icon and high-profile member of the
community, and instead of proceeding to immediately arrest and charge Hunter (as I suspect
would happen in the normal course if, for example, you or I were pulled over in those
circumstances) decided rather that a call should be made back to the precinct in order to see
whether Hunter should be granted special consideration given his significant and high-profile
position in the community. During the course of this call being made, Hunter was left to cool
his heels near his vehicle. Ultimately, and I believe correctly, the officer was told to treat Hunter
no differently than anyone else, and so a charge of impaired driving was ultimately laid, and
Hunter was taken in for processing.
Fastforward to the recent trial, the date of which coincidentally lined up quite closely with the
25th anniversary of the enactment of the Charter. As happens in many criminal cases, the
Charter was argued. The Charter, as you may know, is designed, among other things, to ensure
that everyone is treated equally under the law, and to further protect citizens against procedural
unfairness when they are facing the power of the state, in this case the police. Specifically, the
Charter stands for the proposition that justice involves more than getting the proper result when
someone is charged with a crime; it also involves getting the proper result in a proper manner.
The judge dismissed the charges against Hunter, and in doing so invoked the Charter and in
particular the constitutional right of an individual to not be unreasonably detained by the police.
Specifically, the judge found that the police officer’s decision to make Hunter wait while he
called back to head office, for the purpose of seeing whether he should give Hunter special
treatment, constituted an unreasonable detention and therefore Hunter’s Charter rights had been
breached. In other words, the extra time spent by the police while it was discussed whether
Hunter should receive special treatment, meant that he was not treated like all Canadians are
guaranteed to be treated under the Charter, and therefore his Charter rights were breached.
Which meant that charges, which otherwise quite probably would have led to a conviction, were
dismissed. Which strikes me as a little funny.
Steve Funk is a partner with the law firm Giesbrecht, Griffin, Funk & Irvine. The information set out in this article is not
intended to be relied upon as a legal opinion, and legal advice should be obtained for each individual situation.